Protecting Civilians or Using Them as Pawns: The Israel-Hamas Conflict

JURIST Contributing Editor Laurie Blank of the Emory University School of Law says that more attention should be focused on the care taken by the Israel Defense Forces in its recent military actions in Gaza to protect civilian lives, in sharp contrast to the indiscriminate attacks performed by Hamas...

Earlier this month, as rockets slammed into civilian areas across southern Israel and Israeli airstrikes pounded targets in Gaza, the world's attention rightly focused on civilians killed and wounded in the fighting.

A state's most fundamental obligation is to protect its nationals and its security in the face of danger. In launching its extensive operation in Gaza, Israel carried out exactly that obligation: the operation sought to stop the recent barrage of rocket attacks on southern Israel and to destroy rocket launchers and munitions stores so as to deny Hamas and other militant groups in Gaza the ability to threaten and endanger Israelis in the future.

Acting in self-defense, Israel's mission fell squarely within the bounds of international law. First, it was necessary  there were no options short of force that have stopped or will stop the rockets and prevent future attacks on the million-plus Israelis who live, work and go to school in southern Israel. Second, it was proportionate to the goal of ending the attacks  the operation targeted the rocket launchers, the munitions caches, and the militant groups who launch the attacks.

In any conflict, all parties  states, rebel groups and terrorist organizations  must protect civilians from the ravages of war and take steps to minimize harm to civilians. For each party, these obligations take two primary forms: protecting civilians in the areas where it is attacking, and protecting its own civilians from the consequences of attacks by the enemy party.

Most important, the proclaimed justification for resorting to violence  self-defense or any other  does not impact the obligation of either side to carry out these essential protections. All civilians deserve protection from the suffering and violence inherent in war, regardless of where they live and who their leaders are.

The latest round of violence between Israel and Hamas highlights the fact that how parties fight  lawfully or unlawfully  has significant consequences for the protection of civilians. Compliance with international law obligations greatly minimizes the horrors of war that civilians face; war crimes take an already tragic situation and exacerbate it exponentially.

The law of armed conflict requires that parties distinguish between military and civilian targets and only attack military personnel and targets. All deliberate attacks on civilians are prohibited. The law also prohibits indiscriminate attacks  attacks that are incapable of distinguishing between legitimate targets and civilians. Both types of attacks constitute war crimes.

The law does not stop there, however. An attacking party must take numerous precautions  all for the central goal of protecting civilians: (1) it must refrain from attacks on legitimate targets that will cause disproportionate incidental civilian casualties; (2) choose weapons that will cause the least harm to civilians; and (3) give advance warning of attacks when such warnings are feasible.

Within that framework, compare attacks launched by both Israel and Hamas or Islamic Jihad. Hamas, Islamic Jihad and other militant groups in Gaza point their rockets north at Israel and fire. They target cities  Sderot, Ashkelon, Be'er Sheba, Tel Aviv  populated by civilians with either no regard for the distinction between military and civilian objects or with direct intention to harm civilians and civilian infrastructure. These attacks are war crimes. Indeed, the rocket attacks flaunt the law to such an extent that the legal analysis does not even reach the question of the obligation to take precautions  such an analysis would rest on the assumption that the attacking party is attacking a lawful target and seeks to protect civilians, an assumption irrelevant in the context of Hamas and other militant rocket attacks on Israel.

In contrast, information and video footage from this latest intensification of conflict showcase the extraordinary measures Israel takes to protect civilians in the course of its military operations. As announced, its targets included Hamas, Islamic Jihad and other terrorist operatives, such as Ahmed Jabari, rocket launchers, launch sites and weapons storage depots. Israel's methodology tracks its legal obligations precisely, as the video of the strike on Jabari demonstrates. Jabari's car can be seen weaving through other traffic and the strike is not launched until the car is free and clear of any other vehicles or people. The weapon used had almost no blast radius beyond the vehicle itself and does not seem to have caused any damage beyond it. It is, beyond a doubt, an example of how the legal obligation of distinction operates in practice: a military target, a time and place designed to minimize the presence of civilians and a weapon designed to minimize incidental harm beyond the actual target.

The comparison with the manner in which rocket attacks are launched at Israel is simply staggering, on every level of legal obligation: who is targeted, when they are targeted, and how they are targeted.

Moreover, each side must protect its own civilians from the consequences of military operations. The two most important mandates are that military objects should not be located in densely populated areas and that civilians cannot be used in military operations.

Hamas and other militant groups deliberately locate military objects in the middle of civilian areas, firing rockets from residential rooftops, playgrounds and schoolyards. The consequences demonstrate precisely why the law forbids such conduct. The rocket launchers and the militants who man the rocket squads are legitimate military targets for Israeli operations, just as Israeli soldiers and tanks would be legitimate military targets for Hamas. When Israel attacks these targets in densely populated areas, the risks to civilians are greatly exacerbated, even when Israel takes the necessary precautions.

Using civilians as human shields to protect military targets from attack constitutes a war crime. It also raises broader risks by using them as pawns in a game of chicken, hoping to draw attacks and maximize civilian casualties for strategic and propaganda purposes. Failure to condemn this cynical exploitation of innocent civilians simply facilitates the ability of Hamas and other militants to continue this costly and tragic practice.

The world's attention can be a critical factor in focusing on the risks to civilians during wartime, thus forming an essential partner to international law's fundamental obligations for all parties to protect civilians. Using that attention wisely  by highlighting lawful conduct rather than facilitating unlawful conduct  will help maximize these protections. A look at the difference between how Israel and Hamas conduct military operations tells the whole story.

Laurie Blank is the Director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in 2007. Previously, she was a program officer in the Rule of Law Program at the US Institute of Peace in Washington, DC, where she ran a working group on New Actors in the Implementation and Enforcement of International Humanitarian Law.

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